1.

A city board of appeals is hereby established. The word "board" when used in this section shall be construed to mean the board of appeals. The board shall consist of five members as provided by section 18 of Act 184 of the Public Acts of 1943 [See now MCL 125.585], as amended. The first member of such board of appeals shall be a member of the city planning commission. The remaining members of the board of appeals shall be selected from the electors of the city residing outside of incorporated cities and villages. The members selected shall be representative of the population distribution and of the various interests present in the city. One member may be a member of the city commission. On elected officer of the city shall not serve as chairman of the board of appeals. An employee or contractor of the city commission may not serve as a member or an employee of the city board of appeals. The total amount allowed the board of appeals in any one year as per diem or as expenses actually incurred in the discharge of their duties shall not exceed a reasonable sum which sum shall be appropriated annually in advance by the city commission. Members of the board of appeals shall be removable by the city commission for nonperformance of duty or misconduct in office upon written charges and after public hearing. A member shall disqualify himself from a vote in which he has a conflict of interest. Failure of a member to disqualify himself from a vote in which he has a conflict of interest shall constitute misconduct in office.

2.

The term of each member shall be for three years, except that of the members first appointed, two shall serve for two years and the remaining members for three years. A successor shall be appointed not more than one month after the term of the preceding member has expired. All vacancies for unexpired terms shall be filled for the remainder of the term.

3.

Meetings of the city board of appeals shall be held at the call of the chairman and at such other times as the board in its rules of premature may specify. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board of appeals shall be open to the public. The board shall maintain a record of its proceedings which shall be filed in the office of the city clerk and shall be a public record.

The board of appeals shall have the following powers and duties and shall act upon all questions as they may arise in the administration of the zoning ordinance, including the interpretation of the zoning map, and may fix rules and regulations to govern its procedures sitting as a board of appeals.

1.

Appellate jurisdiction. To hear and decide appeals from and review any order, requirements, decision or determination made by the building inspector charged with the enforcement of this ordinance or made by the city commission in the issuance, approval or disapproval of special use permits.

a)

Appeals; filing. Appeals to the board of appeals concerning interpretation or administration of this ordinance may be taken by any person aggrieved or by any office, department, board or bureau of the city, county, or state affected by any decision of the building inspector. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule, by filing with the board of appeals a notice of appeal specifying the grounds thereof. The building inspector from whom the appeal is taken shall forthwith transmit to the board of appeals all material in his hands relating to action taken by him constituting the record upon which the action appealed from was taken.

b)

Hearing. The board of appeals shall fix a reasonable time or the hearing of the appeal and give due notice to the parties and decide the appeal within a reasonable time. At the hearing, any party may appear in person or by agent or attorney.

c)

Stay of proceedings. An appeal stays all proceedings in furtherance of the action appeased from, unless the zoning administrator from whom the appeal is taken certifies to the board of appeals after the notice of appeals is filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the zoning administrator from whom the appeal is taken and on due cause shown.

2.

Variations. The board of appeals shall decide variations of the provisions of this ordinance in harmony with its general purpose and intent, and shall vary then only in the specific instances hereinafter set forth where the city board of appeals shall have made a finding of fact based upon the standards hereinafter prescribed that there are practical difficulties or particular hardship in the way of carrying out the strict letter of the regulations of this ordinance.

a)

Initiation. An application for a variation may be made by any person, firm or corporation, or by any office, department, board, bureau or commission requesting or intending to request application for a building permit, zoning certificate or occupancy certificate.

b)

Processing. An application for a variation shall be filed with the city clerk. The city clerk shall forward such application to the city board of appeals for processing in accordance with applicable statutes of the State of Michigan and the provisions of this ordinance. No variation shall be made by the city board of appeals except after a public hearing before the board of appeals, of which there shall be a notice which shall be given by two publications in a newspaper of general circulation in the city. The first to be printed not more than 30 days nor less than 20 days and the second not more than eight days before the date of such hearing.

c)

Decisions. All final administrative decisions and findings of the board of appeals on variations arrived at after the hearing shall be accompanied by findings of facts specifying the reason or reasons for approving or disapproving the variation and shall be final and subject to judicial review only in accordance with applicable statutes of the State of Michigan.

d)

Standards.

(1)

The board of appeals shall not vary the provisions of this ordinance as authorized in the section, unless it shall have made findings based upon the evidence presented to it in the following cases:

(a)

That the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which is located;

(b)

That the plight of the owner is due to unique circumstances; and

(c)

That the variation, if granted, will not alter the essential character of the locality.

(2)

A variation shall be permitted only if the evidence in the judgement of the board of appeals sustains each of the three conditions enumerated above.

(3)

For the purpose of supplementing the above standards, the board of appeals in making this determination whenever there are practical difficulties or particular hardships, shall also take into consideration the extent to which the following facts, favorable to the applicant, have been established by the evidence:

(a)

That the particular physical surroundings, shape or topographical conditions of the specific property involved will bring a particular hardship upon the owner as distinguished from a mere inconvenience if the strict letter of the regulations were to be carried out;

(b)

That the conditions upon which the petition for variation is based would not be applicable generally to other property within the same zoned classification;

(c)

That the purpose of the variation is not based exclusively upon a desire to make more money out of the property;

(d)

That the alleged difficulty or hardship has not been created by any person presently having an interest in the property;

(e)

That the granting of the variation will not be detrimental to the public welfare or unduly injurious to other property or improvements in the neighborhood in which the property is located; or

(f)

That the proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the danger, the public safety or substantially diminish or impair property values within the neighborhood.

(4)

The board of appeals may require each condition and restriction upon the premises benefitted by a variation as may the necessary to comply with the standards set forth in this section to reduce or minimize the effect of such variation upon other property in the neighborhood, and to implement the general purpose and intent of this ordinance.

e)

Authorized variations. Variations from the regulations of this zoning ordinance shall be granted by the board of appeals only in accordance with the standards set out in this section, and may be granted only in the following instances, and in no others:

(1)

To permit up to a 20 percent reduction in the front, side or rear yard required by this ordinance.

(2)

To permit the use of a lot or lots for a use otherwise prohibited solely because of insufficient area or width of the lot or lots but in no event shall the respective area and width of the lot be less than 90 percent of the required area and width. The percentage set forth in this subparagraph is not to be reduced by any other percentage for minimum lot width and area set forth in this ordinance.

(3)

To permit the same off-street parking facility to qualify as required facilities for two or more uses, provided the substantial use of such facility by each use does not take place at approximately the same hours of the same days of the week.

(4)

To reduce the applicable off-street parking or loading facilities required by not more than one parking space or loading space or 20 percent of the applicable regulations, whichever number is greater.

(5)

To increase by not more than 20 percent, the gross area of any sign.

(6)

To increase by not more than ten percent the maximum gross floor area of any use so limited by the applicable regulations.

(7)

To exceed any of the authorized variations allowed under this section, when a lot of record or zoning lot, vacant or legally used on the effective date of this ordinance, is by reason of the exercise of the right of eminent domain, by any authorized governmental body or by reason of a conveyance under threat of an eminent domain proceeding reduced in size so that the remainder of said lot does not conform with one or more of the regulations of the district in which said lot of record or zoning lot or structure is located.

f)

Other variations. Variations other than those listed above may be granted by the city commission but only after a public hearing as set forth herein for an authorized variation and a report from the board of appeals recommending the variation.

3.

Board of appeals has powers or zoning administrator on appeals; reversals.

a)

In exercising the above mentioned powers, the board of appeals may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from. The board of appeals may make such order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the zoning administrator or city commission in reference to special use decisions from whom the appeal is taken under appellate jurisdiction.

b)

The concurring vote of three members of the board of appeals shall be necessary to reverse and order, requirement, decision or determination of the zoning administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance or to effect any variation in the application of this ordinance.

Any person, firm, corporation or department, board or bureau of the city aggrieved by any decision of the board of appeals may seek review by a court of record of such decision in the manner prescribed by the laws of the State of Michigan.

1.

It is the intent of this ordinance that all questions under appellate jurisdiction shall be presented to the board of appeals only on appeal from the decision of the zoning administrator or city commission on special use permits. Requests for variances, constituting matters under original jurisdiction of the board of appeals shall be filed with the board of appeals via the city clerk and shall not be construed as an appeal from the decision of the zoning administrator. Recourse from the decisions of the board of appeals shall be to the courts as provided by the laws of the State of Michigan.

2.

It is further the intent of this ordinance that the duties of the city commission in connection with this ordinance shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this ordinance. Under this ordinance, the city commission shall have only the duties of:

(1)

Considering and adopting or rejecting proposed amendments, considering the approval or rejection of special use permits, or the repeal of this ordinance, as provided by law;

(2)

Establishing a schedule of fees and charges as stated in article XX; and

(3)

Appointing members of the board of appeals and the zoning administrator.